Parrish v. The Burlington Northern and Santa Fe Railway Company

Filing 36

MEMORANDUM AND ORDER,the Court STRIKES Parrishs motion to strike or, in the alternative, for an extension of time (Doc. 34 ) and DENIES BNSFs motion for summary judgment (Doc. 29 ). Signed by Judge J. Phil Gilbert on 12/8/2014. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CECIL A. PARRISH,
Plaintiff,
v.

Case No. 13-cv-1054-JPG-SCW

THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion for summary judgment filed by
defendant The Burlington Northern and Santa Fe Railway Company (“BNSF”) (Doc. 29).
Plaintiff Cecil A. Parrish has responded to the motion (Doc. 32), and BNSF has replied to that
response (Doc. 33). Parrish asks the Court to strike BNSF’s response or, in the alternative, for an
extension of time to file his response (Doc. 34). In this case, Parrish alleges that BNSF is liable
under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., for an injury he
incurred on April 12, 2013, while working for BNSF.
I.

Preliminary Procedural Matters
As a preliminary matter, Parrish’s motion to strike contains a substantive response to

BNSF’s argument in its reply brief that Parrish’s response was untimely. As such, it is a sur-reply
brief, which is not allowed under any circumstances. See Local Rule 7.1(c). Accordingly, the
Court will strike Parrish’s motion to strike (Doc. 34).
Nevertheless, the Court rejects BNSF’s timeliness argument. BNSF asks the Court to
disregard Parrish’s response because it was late. BNSF filed its summary judgment motion on
September 23, 2014, and Parrish filed his response on October 27, 2014, thirty-four days later.
However, the response was not, in fact, late. It is true the Local Rule 7.1(c) allows a party thirty

days to respond, but that thirty days runs from the date of service, not the date of filing. When the
date of service triggers a response period, three extra days are added to the response period under
Federal Rule of Civil Procedure 6(d) when service is made electronically. So it appears the
response period expired on October 26, 2014. However, since October 26, 2014, fell on a
Sunday, the response period actually expired the following day, October 27, 2014, the day Parrish
filed his response. See Fed. R. Civ. P. 6(a)(1)(C). For these reasons, the Court finds Parrish’s
response was timely.
The Court now turns to the substance of BNSF’s summary judgment motion.
II.

Summary Judgment Standard
Summary judgment must be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind.,
Inc., 211 F.3d 392, 396 (7th Cir. 2000). A court must construe the evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678,
685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the
Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013). Where the nonmoving party carries the burden of proof at trial,
the moving party may satisfy its burden of production in one of two ways. It may present
evidence that affirmatively negates an essential element of the nonmoving party’s case, see Fed. R.
Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the
nonmoving party’s case without actually submitting any evidence, see Fed. R. Civ. P. 56(c)(1)(B).
Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet
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its strict burden, a court cannot enter summary judgment for the moving party even if the opposing
party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368,
371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by
“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a
fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.”
Anderson, 477 U.S. at 252.
III.

Facts
Viewed in Parrish’s favor, the admissible evidence establishes the following relevant facts

for the purpose of the pending summary judgment motion.
Parrish worked for BNSF as a conductor. On April 12, 2013, he was working as the yard
foreman of a BNSF crew at a Gilster-Mary Lee (“GML”) factory that was preparing to pull rail
cars out of the GML yard. In order to pull the cars out, they had to be coupled with a locomotive.
Coupling involves aligning a drawbar on the railcar coupler and a drawbar on the locomotive
coupler so that when they impact each other, the knuckles of the couplers automatically attach to
allow the locomotive to pull the railcar.1
At the GML yard, coupling was somewhat complicated by the fact that the railroad track

A detailed history and description of the coupling process is set forth in Norfolk & Western
Railway Co. v. Hiles, 516 U.S. 400, 403-07 (1996).
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was curved. On a straight track, the railcar coupler and the locomotive coupler couple when they
contact each other if both drawbars are aligned at a ninety degree angle from the end of the car, that
is, in a center position, so that they meet head-on on impact. On a curved track, however, the
drawbars on the couplers have to be pivoted to the left or right so that when they contact each
other, they meet head-on even though the railcar and locomotive are not perfectly parallel due to
the curve in the track. The drawbars are designed to pivot to accommodate such curves, although
they may get stuck due to weight, age, rust, dirt or foreign objects.
On April 12, 2013, Parrish and his crew were preparing to couple a railcar to a locomotive
on the GML curved railroad track. The first attempt at coupling did not work, so Parrish tried to
adjust the positions of the drawbars.2 He was able to pivot the drawbar on the locomotive coupler
to the appropriate position by hand but the drawbar on the railcar would not move. Parrish
decided to use a tool to pry the railcar drawbar into the proper position for coupling with the
locomotive. The tool was a piece of tubular steel about three feet long and an inch and a half in
diameter that was kept at the GML facility and used on a regular basis by BNSF employees to
move stuck coupler drawbars. Although the tool was not specifically designed to pry stuck
drawbars into position and was not formally approved or authorized by BNSF, Parrish had been
taught by BNSF to use the tool for that purpose when he began working at the GML yard, had used
it for that purpose at least twenty times, had taught others to use the tool for that purpose, and had
been observed by his supervisors without comment on numerous occasions using it for that
There is a question of fact about whether Parrish unsuccessfully attempted to couple the
locomotive and railcar by causing them to impact each other before trying to adjust the drawbars.
Parrish does not describe such an attempt in his description of the events he gave in his deposition,
but does not foreclose the possibility that it occurred either. His affidavit states that there was
such an attempt. While ordinarily the Court will disregard an affidavit that conflicts with earlier
deposition testimony, see Lawson v. CSX Transp., Inc., 245 F.3d 916, 919 n. 4 (7th Cir. 2001);
Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995), because of the absence of testimony
about a first attempt to couple in the deposition, the affidavit does not technically conflict with the
deposition.
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purpose. BNSF did not provide Parrish any other tool or instruction on any other method to move
stuck drawbars. Parrish had never had a problem using the tool prior to April 12, 2013.
Parrish placed one end of the tool between the drawbar and the coupler casing and pulled
on the other end to try to pry the drawbar into the proper position. Instead, the tool came loose,
causing Parrish to tip backwards. When he stepped back to catch himself, his foot slipped on the
gravel surface and his ankle snapped sideways at a ninety degree angle to his leg. Substantial
medical treatment so far has not been able to fix Parrish’s ankle such that he can return to work.
BNSF had not received any complaint about the railcar coupler prior to April 12, 2013, and
post-incident inspection did not reveal any defect in the coupler.
On October 8, 2013, Parrish filed this lawsuit. In the First Amended Complaint, Parrish
brings claims under FELA, 45 U.S.C. § 51 et seq, charging that BNSF was negligent (Count I) and
negligent per se for violation of the Safety Appliance Act (“SAA”), 49 U.S.C. § 20301 et seq.
(Count II). Count I centers on BNSF’s alleged failure to provide him with a safe workplace and
proper tools and equipment on the job. Count II centers on BNSF’s allowing a railcar to be used
that was not equipped with coupler that coupled automatically on impact. BNSF now asks the
Court for summary judgment on the grounds that Parrish has no evidence it was negligent in any
way, that Parrish’s injury was foreseeable or that the couplers malfunctioned.
IV.

Analysis
Parrish brings both claims in this case under FELA; the SAA does not provide a private

right of action but merely establishes a standard applicable in an appropriate FELA case. See
Lisek v. Norfolk & W. Ry. Co., 30 F.3d 823, 825 (7th Cir. 1994). FELA provides that
[e]very common carrier by railroad while engaging in commerce between any of
the several States or Territories . . . shall be liable in damages to any person
suffering injury while he is employed by such carrier in such commerce . . . for such
injury or death resulting in whole or in part from the negligence of any of the
officers, agents, employees of such carrier, or by reasons of any defect or
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insufficiency, due to its negligence, in its cars, engines, appliances, machinery,
track, roadbed, works, boats, wharves, or other equipment.
45 U.S.C. § 51. FELA’s enactment stemmed from the belief that “justice demands that one who
gives his labor to the furtherance of the [railroad] enterprise should be assured that all combining
their exertions with him in the common pursuit will conduct themselves in all respects with
sufficient care that his safety while doing his part will not be endangered.” Sinkler v. Missouri
Pac. R.R. Co., 356 U.S. 326, 330 (1958). Accordingly, “FELA imposes on railroads a general
duty to provide a safe workplace.” McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 300 (7th Cir.
1996).
Because FELA is a “broad remedial statute,” the courts are to construe it liberally in order
to effectuate congressional intent. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557,
562 (1987). As such, the plaintiff’s burden of proof in a FELA case is less than in a negligence
case. Lisek, 30 F.3d at 832. “The railroad is liable if ‘the proofs justify with reason the
conclusion that employer negligence played any part, even the slightest in producing the
injury . . . .’” Id. (quoting Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990)).
Also, FELA defendants are barred from employing “traditional” liability defenses such as the
fellow servant rule, contributory negligence, and assumption of risk. Green v. CSX Transp., Inc.,
414 F.3d 758, 766 n. 2 (7th Cir. 2005) (citing Williams v. National R.R. Passenger Corp., 161 F.3d
1059, 1061 (7th Cir. 1998)).
A FELA claim cannot survive summary judgment unless the plaintiff has offered
“evidence proving the common law elements of negligence, including duty, breach, foreseeability,
and causation.” Williams, 161 F.3d at 1062 (citing Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120,
124 (7th Cir. 1994)). However, evidence that even slight negligence caused an injury is enough

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to overcome summary judgment and get to a jury. Williams, 161 F.3d at 1061 (citing
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994)).
Nevertheless, “a FELA plaintiff is not impervious to summary judgment,” and the court
may properly grant a defendant’s summary judgment motion where “the plaintiff presents no
evidence whatsoever to support the inference of negligence.” Lisek, 30 F.3d at 832. “To
establish that a railroad breached its duty to provide a safe workplace, the plaintiff must show
circumstances which a reasonable person would foresee as creating a potential for harm.”
McGinn, 102 F.3d at 300. “To establish such foreseeability, a plaintiff must show that the
employer had actual or constructive notice of those harmful circumstances.” Holbrook v. Norfolk
S. Ry. Co., 414 F.3d 739, 742 (7th Cir. 2005).
A.

Count I: FELA Negligence

BNSF asks the Court to grant it summary judgment on Count I on the grounds that Parrish
has no evidence that it breached any duty to Parrish or that his injury was foreseeable. With
respect to the breach of duty, BNSF points to Ewing v. St. Louis Southwestern Railway Co., 772
S.W.2d 774, 775 (Mo. Ct. App. 1989), in which a railroad worker was injured when the wrench he
was using slipped. There, the court found that the plaintiff had presented no evidence that the
slipping wrench was caused by any negligence of the railroad. Id. at 776. With respect to the
foreseeability element, BNSF argues that it did not have actual or constructive notice that the
railcar drawbar did not move properly or that the tool Parrish used would slip.
In response, Parrish argues that BNSF was aware of coupling problems at the GML yard
but failed to repair or replace the couplers involved, to move the railroad operations at GML so that
they did not involve a curved track, to provide better training about the coupling problems at GML,
or to provide an appropriate tool to adjust drawbars. He distinguishes Ewing by noting that the
plaintiff in that case was using an appropriate tool to repair non-malfunctioning equipment,
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whereas he was using a makeshift tool to adjust an allegedly malfunctioning drawbar.
The Court declines to grant summary judgment on Count I in light of the at least “slight
evidence” that BNSF was negligent. BNSF clearly knew that coupling on a curved track like the
one at GML on occasion required adjusting coupler drawbars to align them with each other and
that at times the drawbars became stuck so they could not be moved easily by hand. Parrish’s
supervisors had taught him how to make the necessary adjustments and had witnessed him and
other BNSF employees make such adjustments a number of times. Not only had they witnessed
the adjustments being made, they had witnessed them being made with the tool Parrish used on
April 12, 2013, which BNSF acknowledges was not authorized or approved for such use. Thus,
unlike the defendant in Ewing, BNSF was on notice that an improper tool was being used to adjust
stuck drawbars and should have foreseen the possibility of injury to one of its employees as a
result. Accordingly, BNSF is not entitled to summary judgment on Count I.
B.

Count II: SAA Violation

BNSF asks the Court to grant it summary judgment on Count II on the grounds that there is
no evidence it violated the SAA. The SAA requires a railroad carrier to equip its railroad vehicles
– including locomotives and railcars – with couplers that couple “automatically by impact . . .
without the necessity of individuals going between the ends of the vehicles.” 49 U.S.C.
§ 20302(a)(1)(A). The SAA essentially requires “that rail cars be equipped with automatic
couplers and that all couplers be sufficiently compatible so that they will couple on impact.”
Norfolk & W. Ry. Co. v. Hiles, 516 U.S. 400, 407-08 (1996). Thus, after the SAA, railroads are no
longer permitted to use older, more dangerous coupling mechanisms that require workers to be
present between cars during the coupling process.
The use of railcars without properly functioning automatic couplers violates the SAA, and
the railroad is liable for any resulting injury regardless of whether the railroad was negligent. Id.
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at 408; Lisek v. Norfolk & W. Ry. Co., 30 F.3d 823, 825-26 (7th Cir. 1994). However, it is not a
violation of the SAA when a coupler drawbar misaligns during the ordinary course of railroad
operations and requires a railroad employee to go between railcars to realign it before coupling.
Hiles, 516 U.S. at 409. Misaligned drawbars are part and parcel of normal railroad operations and
do not, as a matter of law, indicate a malfunctioning coupler. Id. at 412. Thus, where railcars fail
to automatically couple upon impact, the railroad can escape liability under the SAA by showing
the couplers failed to couple because the drawbars had not been properly aligned to begin with.
Id. at 410.
In this case, the evidence, viewed in Parrish’s favor, shows that there was an unsuccessful
attempt at coupling immediately before Parrish tried to align the drawbar using the tool. This is
sufficient to establish a claim under the SAA. See Lisek, 30 F.3d at 829 (“the failure to couple
creates the nearly irrebuttable presumption that the Act has been violated”). However, even
under these circumstances, BNSF is entitled to try to establish the defense that misalignment of the
drawbars was the cause of the failure to automatically couple on the first try. Hiles, 516 U.S. at
410. It has not presented unassailable evidence of this in its summary judgment briefing and is
therefore not entitled to summary judgment.
V.

Conclusion
For the foregoing reasons, the Court STRIKES Parrish’s motion to strike or, in the

alternative, for an extension of time (Doc. 34) and DENIES BNSF’s motion for summary
judgment (Doc. 29).
IT IS SO ORDERED.
DATED: December 8, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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